506 F.Supp.3d 1
D.D.C.2020Background
- P&ID (an Irish-owned company) and Nigeria entered a gas supply and processing Agreement providing for arbitration and stating Nigerian law would govern; the arbitration venue was London.
- P&ID initiated arbitration in London (2012); the tribunal found Nigeria liable and in 2017 issued a final award of roughly $6.6 billion plus interest (now ~ $10 billion).
- Nigeria sought to annul or challenge the award in English and Nigerian courts; an English court initially enforced the award but later granted Nigeria leave to reopen its challenge based on alleged fraud and bribery; an English trial was expected in 2022.
- P&ID filed a petition in D.C. federal court (2018) to confirm the award; Nigeria moved to dismiss under the Foreign Sovereign Immunities Act (FSIA), arguing sovereign immunity.
- The D.C. Circuit held Nigeria’s immunity argument was colorable and that jurisdictional immunity must be resolved first; on remand the district court denied Nigeria’s motion to dismiss, finding Nigeria impliedly waived immunity by acceding to the New York Convention and agreeing to arbitrate in the territory of another Convention signatory; the court declined to stay the case pending the English proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to stay this D.C. confirmation proceeding pending English litigation | P&ID: stay is unnecessary and prejudicial; adjudicate jurisdiction now | Nigeria: stay appropriate to avoid duplicative proceedings and respect related English actions | Denied for now; Europcar factors weigh against immediate stay; without prejudice to future stay request |
| Whether FSIA arbitration exception (28 U.S.C. §1605(a)(6)) confers jurisdiction | P&ID: award falls within Convention-based arbitration exception | Nigeria: argues FSIA bars U.S. jurisdiction because of immunity and scope limits | Court did not decide; relied on waiver ground instead |
| Whether Nigeria waived sovereign immunity by acceding to the New York Convention and agreeing to arbitrate in territory of another Convention signatory (implied waiver under §1605(a)(1)) | P&ID: signature to Convention plus arbitration in another signatory implies intent to be subject to courts of other signatories | Nigeria: argues Seetransport rule conflicts with Supreme Court/D.C. Circuit precedent and renders arbitration exception redundant | Held: Court follows Seetransport/Creighton/Tatneft line — Nigeria impliedly waived immunity; jurisdiction exists under waiver exception |
| Whether a purported annulment by a Nigerian court defeats jurisdiction or is a merits defense | P&ID: annulment is a merits issue for adjudication, not a jurisdictional bar | Nigeria: argues set-aside by a competent authority should prevent enforcement in U.S. | Court: annulment is a merits defense under the Convention (Article V); it does not negate jurisdiction under the FSIA waiver finding |
Key Cases Cited
- Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co. v. Navimpex Centrala Navala, 989 F.2d 572 (2d Cir. 1993) (recognizes implied waiver when a Convention signatory agrees to arbitrate in another signatory’s territory)
- Creighton Ltd. v. Gov’t of State of Qatar, 181 F.3d 118 (D.C. Cir. 1999) (discusses FSIA exceptions and endorses Seetransport reasoning in dicta)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) (treaty ratification alone does not waive immunity when treaty does not provide for private actions in U.S. courts)
- TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928 (D.C. Cir. 2007) (a lawfully set-aside award in the country of origin cannot be enforced)
- Maritime Int’l Nominees Establishment v. Republic of Guinea, 693 F.2d 1094 (D.C. Cir. 1982) (distinguishes waiver questions arising from ICSID treaty participation)